New Pot Law Won’t Help Losing Nursery Get License

TALLAHASSEE — A new law won’t help a nursery whose score was a fraction of a percent less than the winner of a highly sought-after medical marijuana license in Central Florida, an administrative law judge ruled Friday.

McCrory’s Sunny Hill Nursery — which joined forces with three other growers and purchased a 180,000-square-foot facility in Lake Wales with the hopes of receiving a license — argued, based on a 2016 law, that it should receive one of the state licenses without having to go through a process of being re-evaluated.

The law was designed, in part, to protect five growers selected last fall after a panel ranked applications from nurseries in different regions and awarded licenses to the top scorers. The law also requires health officials to grant licenses to applicants who are successful in administrative or legal challenges related to the licenses.

And the law requires that any nursery that was the top scorer in a region must receive a license, even if health officials deemed it ineligible. Under that provision, a single nursery — Gainesville-based San Felasco — was granted a license this spring in the Northeast region.

With the rapidly approaching deadline to submit an application to begin growing pot, Florida nurseries are caught in legal battles with competing applicants who claim the process was unfair.

McCrory’s claimed that it should have received the highest score in the Central region, where health officials granted a license to Knox Nursery. McCrory’s and Redland Nursery were already challenging Knox’s license when the new law went into effect this spring, and that earlier challenge is still pending.

Of the seven applicants in the Central region, the panel gave McCrory’s an aggregate score of 5.5417, just a fraction below Knox, whose score of 5.5458 earned the Lake Mary-based grower a license.

McCrory’s contended that one of the reviewers, who identified the nursery as “superior to all other applicants” in one component, erroneously gave the nursery a score of “6” instead of a “7.” If the rank had been assigned correctly, McCrory’s “would correctly receive the high score and been the highest scoring applicant in the Central region,” the nursery’s lawyers wrote in an amended complaint filed last month.

But in a ruling Friday recommending that McCrory’s case be dismissed, Administrative Law Judge Elizabeth McArthur agreed with health officials, who argued that the new law only applies to nurseries that were high scorers and that were determined by the department to be ineligible for a license. Only San Felasco met both of those criteria, health officials said.

“No matter how egregious McCrory’s claims the scoring errors were, no matter how minute the correction that McCrory’s contends it can prove should be made for it to leapfrog over Knox and become the highest aggregate scorer, the remedy available to McCrory’s is the litigation option, not the legislative approval option,” lawyers representing the Department of Health wrote in a recommended final order adopted by McArthur.

McCrory’s had also argued that the department’s interpretation that the law applied only to a single nursery, San Felasco, would make the statute an unconstitutional “special act.”

But, the health department’s lawyers contended that the administrative judge lacked the authority to decide on the constitutionality of the law.

“The McCrory’s suggestion that the literal interpretation of this provision may prove to mean that the provision would not withstand constitutional scrutiny may be so, or may not be so, but in either event cannot transform the language chosen by the Legislature into different language that would fit McCrory’s,” the lawyers wrote.

Lawmakers two years ago legalized non-euphoric marijuana for patients with severe muscle spasms or cancer. Since then, the state has spent nearly $500,000 on private attorneys — W. Robert Vezina, Eduardo Lombard, and Megan Reynolds, of the Vezina, Lawrence and Piscitelli law firm — to represent the Department of Health in legal cases that have delayed implementation of the 2014 law.

As voters prepare to decide in November whether to approve a ballot initiative on medical marijuana, the law passed this year by the Legislature also legalized full-strength marijuana for terminally ill patients. Under the new law, the nurseries authorized to grow the non-euphoric cannabis will also be able to grow the full-strength marijuana without going through any additional competition for licenses.

The proposed constitutional amendment, largely bankrolled by Orlando trial lawyer John Morgan, would legalize medical marijuana for a broad swath of patients with debilitating illnesses.